Niziolek v. Chicago Transit Authority

• Decision Date: 12 April 1993
• Docket Number: No. 1-91-2368,1-91-2368
• Citation: 189 Ill.Dec. 780,251 Ill.App.3d 537,620 N.E.2d 1097
• Parties: , 189 Ill.Dec. 780 Scott NIZIOLEK, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation, and Leroy Carter, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1097

620 N.E.2d 1097

251 Ill.App.3d 537, 189 Ill.Dec. 780

Scott NIZIOLEK, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation, and Leroy Carter, Defendants-Appellees.

No. 1-91-2368.

Appellate Court of Illinois First District, First Division.

April 12, 1993.

Thomas C. Sprague, LaGrange, for plaintiff-appellant.

William Farley, General Atty., Chicago Transit Authority, and P. Scott Neville, Jr., Chicago, for defendants-appellees.

Justice BUCKLEY delivered the opinion of the court:

Scott Niziolek (plaintiff) brought a personal injury action against the Chicago Transit Authority (CTA) and Leroy Carter (Carter) to recover damages for injuries he allegedly sustained when his automobile was struck from behind by a CTA bus driven by Carter. The trial court granted the CTA's motion to dismiss (Ill.Rev.Stat.1991, ch. 110, par. 2-619 (now 735 ILCS 5/2-619 (West 1992))) on the ground that plaintiff's claim was barred because he failed to give proper written notice to the secretary of the Board and to the CTA's general counsel within six months of the accident as required by section 41 of the Metropolitan Transit Authority Act (the Transit Act). (Ill.Rev.Stat.1991, ch. 111 2/3, par. 341 (now 70 ILCS 3605/41 (West 1992)).) On appeal, plaintiff contends: (1) that he "substantially complied" with the notice requirement through his communications and correspondence with a CTA claims representative and, therefore, satisfied section 41; (2) that the claims representative's conduct served as a waiver of section 41 and estopped the CTA from asserting plaintiff's noncompliance with the notice provision as a bar to his claim; and (3) that the legislative scheme requiring a plaintiff to give notice under section 41 of the Transit Act, but not requiring such notice under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (see Pub.Act 84-1431, eff. Nov. 25, 1986 (repealing Ill.Rev.Stat. 1985 ch. 85, par. 8-102)) is unconstitutional and denies plaintiff the equal protection of the law. Finally, plaintiff asserts that, even if the case against the CTA is dismissed, the case against its employee, Carter, should not be dismissed. We affirm.

On December 28, 1990, plaintiff filed a one-count complaint against the CTA and its employee, Carter, to recover damages for his injuries. Plaintiff alleged that on April 12, 1990, at or near the intersection of 79th and Tripp, he was driving his car when a CTA bus driven by Carter struck the rear end of his automobile causing him to sustain permanent injuries. In lieu of answering plaintiff's complaint, the CTA filed a motion to dismiss (Ill.Rev.Stat.1991, ch. 110, par. 2-619 (now 735 ILCS 5/2-619 (West 1992))) on the ground that plaintiff neglected to file the statutorily required notice of his intent to sue with the secretary of the Board and the CTA's general counsel within six months of the incident. Ill.Rev.Stat.1991, ch. 111 2/3, par. 341 (now 70 ILCS 3605/41 (West 1992)).

In plaintiff's response to defendant's motion to dismiss, plaintiff conceded that he did not give written notice of his claim within six months of the incident to both the secretary of the Board and the CTA's general counsel as required by section 41. (Ill.Rev.Stat.1991, ch. 111 2/3, par. 341 (now 70 ILCS 3605/41 (West 1992)).) In his response, plaintiff insisted that "substantial compliance" with section 41 was sufficient to satisfy the notice requirement and, as evidence of his substantial compliance, he itemized the extensive correspondence between his attorney and the CTA claims representative. He also argued that the CTA was estopped from asserting plaintiff's failure to give the statutorily required notice to bar his claim and that the CTA waived the requirements of section 41 by "participat[ing] in discovery in this cause and discuss[ing] settlement." Plaintiff attached the affidavit of his former attorney (affiant) to his response in order to show the conduct of the claims representative which plaintiff argues establishes waiver and estoppel.

In the affidavit, affiant stated that, when he first contacted the CTA claims representative on April 17, 1990, he was told "to address all correspondence for the CTA concerning this claim to him." Affiant asserts that on that same day, April 17, 1990, he promptly sent the claims representative the plaintiff's name and address, the date and location of the accident, and a description of the general nature and extent of plaintiff's injuries and property damage. On April 25, 1990, the claims representative sent a letter to affiant indicating that the file was "incomplete" in that it needed "[a] statement, medicals, [and] bills." This letter also advised affiant to forward "[a]ll bills, reports, and estimates * * * to the attention of the undersigned." According to affiant, he responded by forwarding to the claims representative a "statement" by plaintiff setting forth his version of "the facts and circumstances of the accident as well as a description of his personal injuries and property damage." Additionally, affiant stated that, in response to a subsequent letter requesting that plaintiff complete wage and medical authorization forms, he sent the completed forms to the claims representative on August 3, 1990. Affiant asserts that between April 17, 1990 and November 19, 1990, he forwarded to the claims representative "all available information and documentation concerning [plaintiff's] claim."

Affiant contends that he "was led to believe that the CTA and Mr. Uhl [the claims representative] were actively investigating, receiving, and evaluating [plaintiff's] claim in a fair and equitable manner." He maintains that the claims representative never advised him that he needed to send a formal notice of claim in addition to all the documents and information he had already sent. He further stated that the CTA claims representative advised him during the week of August 27, 1990, that the only remaining item that he and the CTA needed in order to discuss settlement was a doctor's report. Affiant contends in his affidavit that the claims representative's actions indicated that the CTA did not doubt its liability, but that it recognized that the only question was the extent of plaintiff's damages. He argues that he was purposely misled into believing that "any formalities, beyond what had been done, had been complied with or were not being required or had been waived." The CTA did not file any counteraffidavits. On June 19, 1991, the trial court heard oral arguments on the motion and dismissed plaintiff's complaint with prejudice. Plaintiff appeals.

Plaintiff's first contention on appeal is that "substantial compliance" with section 41 of the Transit Act is sufficient to satisfy the notice requirement. Plaintiff points out that section 41 of the Transit Act is very similar to section 8-101 through section 8-103 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1991, ch. 85, pars. 8-101 through 8-103 (now 745 ILCS 10/8-101 through 8-103 (West 1992))) and asserts that both Acts should be construed in the same manner. He argues that the Illinois courts have found substantial compliance with the Tort Immunity Act sufficient to satisfy its requirements and contends that this court should find substantial compliance with section 41 sufficient to satisfy the Transit Act requirements. He maintains that he substantially complied with the section's requirements because he sent the CTA all the statutorily required information and the CTA was not harmed or prejudiced by the fact that the information was sent to the claims representative instead of to the secretary of the Board and the CTA's general counsel as the provision requires. He argues that a strict interpretation of section 41 would result in absurd and unjust consequences and would allow the CTA to avoid liability for its conduct simply because plaintiff failed to comply with a technical requirement. The CTA, on the other hand, asserts that Illinois case law requires that plaintiff strictly comply with the requirements of section 41. The CTA maintains that plaintiff's cause of action was properly dismissed because he did not give the statutorily required notice within six months of the accident.

Section 41 of the Transit Act requires that a plaintiff file notice within six months of an accident "in the office of the secretary of the Board and also in the office of the General Attorney for the Authority." (Ill.Rev.Stat.1991, ch. 111 2/3, par. 341 (now 70 ILCS 3605/41 (West 1992)).) If notice is not filed as required, section 41 provides that "any such civil action commenced against the Authority shall be dismissed." (Ill.Rev.Stat.1991, ch. 111 2/3, par. 341 (now 70 ILCS 3605/41 (West 1992)).) When the word "shall" is included in a legislative provision, Illinois courts generally have held that the requirement is mandatory. (People v. Williams (1991), 143 Ill.2d 477, 484, 160 Ill.Dec. 437, 440, 577 N.E.2d 762, 765; Fumarolo v. Chicago Board of Education (1990), 142 Ill.2d 54, 96, 153 Ill.Dec. 177, 185, 566 N.E.2d 1283, 1301; Greer v. Illinois Housing Development Authority (1988), 122 Ill.2d 462, 499, 120 Ill.Dec. 531, 548, 524 N.E.2d 561, 578; Di Falco v. Board of Trustees (1988), 122 Ill.2d 22, 28, 118 Ill.Dec. 446, 449, 521 N.E.2d 923, 926.) This court has held, therefore, that the plaintiff has the burden of strictly complying with the requirements of section 41. Sanders v. Chicago Transit Authority (1991), 220 Ill.App.3d 505, 507, 163 Ill.Dec. 260, 262, 581 N.E.2d 211, 213.

In Sanders, 220 Ill.App.3d at 507, 163 Ill.Dec. at 262, 581 N.E.2d at 213, plaintiff gave notice to the CTA's general counsel, but not to the secretary of the Board. We concluded that this notice was not in strict compliance with section 41 and affirmed the dismissal of plaintiff's complaint. (Sanders, 220 Ill.App.3d at 508-09, 163 Ill.Dec. at...